Criminal convictions and immigration law

WHAT makes a non-citizen deportable? An alien or non-citizen, including a lawful permanent resident (“green card” holder) is deportable for having a conviction relating to controlled substances. Title 8 U.S.C. Section 1227(a)(2)(B)(i) states: “Any alien who at any time after admission has been convicted of a violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.

What counts as a “conviction” for immigration purposes? “The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where – (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed, including fine, court costs or probation.

Immigration consequences of a drug conviction. A non-citizen alien will still have a drug conviction for immigration purposes even after a dismissal of his/her charges following completion of a drug diversion program or a DEJ. As such, a permanent resident/green card holder who is deportable can be stripped of his or her lawful status and permanently removed (deported) from the United States.

A lawful permanent resident who agrees to plead guilty in exchange for probation or entry in a diversion program or a DEJ, even after dismissal of charges under PC 1000.3, will have a conviction and will be automatically deportable and inadmissible. Worse, since this will be considered a drug conviction, the green cardholder will also be subject to mandatory immigration detention without bond. California residents often are detained in federal prisons in isolated areas in Arizona or Texas, far from family or counsel. This is because a diversion program or a DEJ is a conviction for immigration purposes in that there is a plea and some form of punishment and restraint. Thus, although California considers there to be no conviction if the court dismisses the charges based on the defendant completing DEJ requirements, the conviction still stands under immigration laws. To eliminate a conviction for immigration purposes, the plea must be withdrawn for cause, due to a legal defect in the underlying case.

The Kelly Memorandum of February 20, 2017. On February 20, 2017, the Department of Homeland (DHS) Security Secretary John Kelly issued a new policy memorandum, announcing that DHS will no longer exempt classes or categories of removable aliens from potential enforcement. Pursuant to the Kelly Memorandum of February 20, 2017, noncitizens are removable if they – (i) have been convicted of any criminal offense; (ii) have been charged with any criminal offense that has not been resolved; (iii) have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency; (iv) have abused any program related to receipt of public benefits; (v) are subject to a final order of removal but have not complied with their legal obligation to depart the U.S.; (vi) in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

Negative Consequences of Criminal Conviction. The Record of Conviction details an individual’s criminal history. More importantly, the relief(s) available to an individual facing deportation will depend largely on that individual’s record of conviction. Thus, even “just a misdemeanor” can make a non-citizen deportable, even if that person is a long-time green card holder and has lived in the United States for 20 years. Therefore, it is very important to understand that before taking a plea deal, consult with a deportation defense attorney.

No two cases are exactly the same. Consult with an experienced and competent immigration attorney immediately, and more importantly prior to filing any applications with the USCIS, or prior to pleading to anything in any court, in order to explore their options and possible legal ramifications that they might be facing.

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Atty. Lilli Berbano Baculi is an associate attorney with Chua Tinsay & Vega, A Professional Legal Corporation (CTV) – a full service law firm with offices in San Francisco, San Diego, Sacramento and Philippines. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (619) 955-6277; (415) 495-8088; (916) 449-3923; lbaculi@ctvattys.com. For general information visit www.chuatinsayvega.com.